92 Decision Citation: BVA 92-22252
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-43 303 ) DATE
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THE ISSUES
1. Whether new and material evidence sufficient to reopen a
claim of entitlement to service connection for a psychiatric
disorder has been submitted.
2. Whether new and material evidence sufficient to reopen a
claim of entitlement to service connection for a left knee
disorder has been submitted.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Service
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
William L. Pine, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1942 to
September 1943.
The Veterans Administration (now Department of Veterans
Affairs) (VA) granted service connection for a psychiatric
disorder in May 1945. Service connection for that disorder
was severed in a rating decision of April 1958. The Board
of Veterans' Appeals (Board) affirmed the severance in a
decision of September 1958, finding that a psychiatric
disorder clearly and unmistakably preexisted service and was
not aggravated by service, and that the initial grant was a
clear and unmistakable error. In a decision of May 1964,
the Board determined that the prior, final Board decision
could not be reopened for lack of submission of new and
material evidence.
In December 1974, the Board denied service connection for a
left knee disability. A rating decision of February 1983
declined to reopen a claim for service connection for a left
knee disability. In December 1983 the Board determined that
the issue of entitlement to service connection for a left
knee disorder was not appropriately before it since
substantive contentions had not been submitted as to that
issue. In February 1985, the Board found that the appellant
had not submitted new and material evidence sufficient to
reopen the claim.
This matter came before the Board on appeal from a rating
decision of September 1990, from the Atlanta, Georgia,
Regional Office (VARO). VARO notified the appellant of the
decision and of his appellate rights by a letter dated
November 14, 1990. The notice of disagreement was received
on December 5, 1990. The statement of the case was issued
on January 23, 1991. The substantive appeal was received on
January 30, 1991. There was a hearing on appeal in April
1991. VARO issued a supplemental statement of the case in
May 1991. The appeal was received at the Board in September
1991.
REMAND
The appellant has claimed that the severance of service
connection for a psychiatric disorder in April 1958 was
based on clear and unmistakable error. Hearing Transcript 1
(Apr. 24, 1991). A liberal reading of a substantive appeal
must include issues raised in all documents prior to the
Board's decision. EF v. Derwinski, 1 Vet.App. 324, 326
(1991). The issue of clear and unmistakable error in the
rating decision of April 1958 has not been developed or
adjudicated by the VARO. The Board must act upon issues
clearly shown on the record. Payne v. Derwinski, 1 Vet.
App. 85, 87 (1990). Issues that are "inextricably
intertwined" with other issues on appeal should be
considered together to avoid the inefficiency of piecemeal
review. Harris v. Derwinski, 1 Vet.App. 180, 182-83
(1991). Where there is an inextricably intertwined issue
that remains pending before VA, a decision by the Board on
the issue adjudicated will not be considered a final order
subject to appeal to the Court of Veterans Appeals. Id. at
183. The claim of clear and unmistakable error is such an
intertwined issue.
Accordingly, the case is REMANDED to the originating agency
for the following:
Completely develop and adjudicate the issue of clear
and unmistakable error in the rating decision of
April 1958 severing service connection for a
psychiatric disorder. Provide the appellant and his
representative with an appropriate supplemental
statement of the case, and allow a reasonable time
for response.
Following completion of that action, the case should be
returned to the Board for further appellate consideration,
as appropriate. No action is required of the appellant
until he receives further notice.
This REMAND is to ensure due process of law. Appellate
review of the issue whether to reopen the claim for service
connection for a left knee disorder is deferred pending
completion of the dictates of this order. The Board
intimates no opinion as to the final outcome warranted in
this case.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
BETTINA S. CALLAWAY MATTHEW J. GORMLEY, III
KENNETH R. ANDREWS, JR.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.